Civic Center Courthouse

Curtis E.A. Karnow

Judge, San Francisco County Superior Court

Trials, Settlements

Judge Karnow is author of "Litigation in Practice" (2017) and current co-author of Weil & Brown et al., "California Practice Guide: Civil Procedure Before Trial" (Rutter).

Every litigator and judge knows litigation costs may block plaintiffs and defendants from pursuing the merits. Attorneys fee provisions help on some claims, but these provisions leave many cases out in the cold. Even with a fee provision, or a possible contingency, costs still inhibit lawyers because they are fronting the expense. And for defendants without insurance, most "victories" are pyrrhic. So parties may settle based more on cost than the merits--or forego contest altogether.

But against the background of copious state and local rules, detailed procedures for summary judgment, scores of different burden-shifting formulas (many with three parts), and multi-factor tests (a trial continuance motion has 18 of them, CRC 3.1332), there is one procedure that saves time and money, expedites litigation, and provides much-needed civil trial experience to lawyers.

This is the expedited jury trial (EJT) procedure. C.C.P. § 630.01 et seq.; CRC 3.1549-3.1553.

I had some of the first EJT trials after the statute became effective in 2011. The law was drafted by defense and plaintiff lawyers together and passed unanimously in the legislature. In my experience, the juries and lawyers loved it.

Imagine: a trial in a day or two. A fast track into the courtroom--because you're not lined up waiting for judge who has three weeks open on her calendar. A jury picked in an hour. For the client, it's a bargain. For the lawyer, it's a great way to secure real trial experience: openings, closing, direct, cross, evidentiary issues, and so on. EJTs are mandatory in limited cases (aside from unlawful detainers), but given the stakes in those cases, any kind of trial often is just not worth it, and when it is, the best bet is usually to have a short bench trial.

EJTs can be used by stipulation in any case, though. In an unlimited case (stakes over $35,000) they are best suited to either a simple case with a few witnesses, such as some slip and falls, car accidents with e.g., soft tissue injury, or a simple breach of contract. In larger cases, EJTs are a mighty efficient way to resolve critical fact issues on the way to settlement, or as a way to simplify the ensuing general trial. For example, EJTs can dispose of issues such as agency, acting in the scope of employment, and statute of limitations. If a party claims ambiguity in a contract by pressing extrinsic evidence of the meaning of a critical term, an EJT with a few witnesses might be all that is needed to establish the meaning--even in $10 million suit. Think of it as a super motion in limine, done when a fact issue is at stake.

Lawyers often find themselves taking an unsatisfactory settlement because of - at least in part--the cost of trial. If they have confidence in their case and there's a key issue that can be isolated for trial, an EJT may be just the ticket to move the needle on settling the whole case. Often, it's a better choice than arbitration: it will likely take less time and money. Actual state law will be applied. And an EJT jury may be preferable to a single professional arbiter for inchoate, "common sense" issues, such as whether conduct was "reasonable," credibility, or what to award for pain and suffering.

These are the basic rules for EJTs. The jury has 8 people, no alternates. Six votes for a verdict. Three peremptory challenges for each side. Each side has 5 hours for its case. The parties can have a high/low agreement so that the judgment will be at least a certain sum and not more than some other sum. Motions for new trial, and appeals, are limited to a few grounds: judicial or jury misconduct, or corruption, fraud, etc., that interfered with a fair trial. These strictures are all open to modification. For example, another hour or two per side, or to add an alternate--with the approval of the judge. The judge will almost always agree, because the benefits of even a modified EJT are so great.

So why don't more lawyers use EJTs? Mostly, I think, it's that they don't know about the procedure. Hence this article. And that's why San Francisco Superior Court is now issuing a notice on EJTs in most civil cases. This is meant to spark discussions between counsel and with clients on the use of the procedure.

Another reason may be what I call the IBM syndrome. In the 1980s we heard the phrase, "no one ever gets fired for buying IBM." The well-known brand was thought to insulate a buyer from blame if something went wrong. So too perhaps with unusual procedures like EJTs: when a side loses, lawyers don't want to hear that a 12-person jury, or a ten-day trial, would have had a different result, even if there's no basis for the critique. But still, lawyers should have the courage to advise the best course of action--even when, god forbid, it makes economic sense.

And maybe there's a third, related, reason: There's something nerve-wracking about a quick resolution on the merits. There is something soothing in ponderous, deliberative procedures; they will (we think) ensure a correct outcome. We want to investigate every witness, gather every document, scour the earth for every fact. We equate the importance of the case with the time taken to prosecute it, and wonder how a one or two-day trial can do justice to it all.

I have two answers to this. First, think of lengthy, exhaustive trial preparation as groundwork for a surgical resolution. Truly successful preparation slims the issues down to the essence---and we only need to try the essence. This is a mark of great lawyering. Second (and to return to my opening), exhaustive, comprehensive litigation may be needed in some cases; but in other cases the cost is literally prohibitive-- it stymies for all time the possibility that the merits will ever be reached. Complex procedure is not always your friend. EJTs are a good way to get a resolution actually based on the merits, without making every victory an empty one.